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One of the provisions of the recently enacted VAWA 2005 is that
jurisdictions will no longer be eligible for STOP funding if
their policy or practice is to ask or require adult, youth or
child victims of sexual assault to submit to a polygraph
examination or other truth telling device as a condition for
proceeding with the investigation of the crime. In addition, the
refusal of a victim to submit to such an examination must not prevent the
investigation of the crime. Jurisdictions have until January 5,
2009 to comply with the law.
Over the last few years, I have trained and written articles
generally discouraging the use of polygraphs, Voice Stress
Analysis and Other Methods for “Lie Detection” during the course
of an investigation. This provision may cause some concern and
so I hope this Promising Practices article will help to
alleviate resistance to change in departmental policies and
procedures as jurisdictions rethink their policies in response
to the new law. To further support your efforts to meet this new
requirement, we have provided guidance from the International
Association of Chiefs of Police and provisions from model laws
at the conclusion of this article.
First, I often find that polygraphs -- like some release waivers
-- are used to shut down an investigation while providing a
perception of immunity, rather than being used to build an
investigation. I also find that these interrogation tactics can
sometimes create a “false report” by
intimidating victims into withdrawing their cooperation or even
recanting their report. These methods can include the use – or
threat of using – polygraph examinations, voice stress analysis,
handwriting analysis, statement validity analysis, and other
means to determine whether the victim is telling the truth.
Unfortunately, such methods are routinely used with sexual
assault victims in some areas of the country, often times as a
way of screening cases so that we do not “waste our time” doing
an investigation of a report we suspect is false.
These screening methods are particularly likely to be used with
certain types of sexual assault cases -- those that raise some
of the “red flags” listed below:
-
The victim and
suspect know each other.
-
The victim and
suspect have had sex before.
-
The victim is an
adolescent.
-
No weapon was
used.
-
No physical
violence was reported.
-
There is no sign
of physical injury.
-
The victim is
calm.
-
The victim didn’t
report to law enforcement for days, weeks, or even months.
-
The victim
reported to someone other than law enforcement.
-
The victim is
difficult to locate.
-
There is little
or no evidence to corroborate the allegation.
-
The victim does
not follow through or participate with the investigation.
-
The victim
changes his or her account of what happened.
-
The victim is
uncertain or vague about the details of the sexual assault.
-
The victim
recants.
-
The victim later
recalls additional information.
-
Details in the
victim’s account are provably false.
-
The victim is not
seen as credible.
-
The victim is
elderly, disabled, or unattractive.
-
The victim was
drunk and/or voluntarily used drugs at the time of the assault.
-
The victim is
suspected of being a prostitute or drug addict.
-
The victim is
thought to be involved in previous criminal behavior.
-
The victim is
belligerent.
-
The victim is
homeless.
-
The victim has a
physical or mental impairment.
-
The victim fails
a polygraph examination.
-
The victim has
reported sexual assault(s) in the past.
-
No suspect can be
identified.
-
The suspect seems
sincerely upset and confused by the allegations.
-
The suspect seems
respectable, credible, or even likeable.
-
The suspect is
attractive and has an active, consensual sex life.
Yet such methods
are widely viewed as inappropriate – both because they are
ineffective for this purpose and because they destroy any trust
the victim has with law enforcement. Of course, this in turn
eliminates any chance for successful investigation and
prosecution.
Imagine the following scenario:
A woman is
sexually assaulted and experiences emotional trauma as a result.
She then decides to report the assault to the local police
department, which increases her anxiety level. The police
officer then uses (or threatens to use) some method to determine
whether or not she is lying (e.g., a polygraph examination,
voice stress analysis, handwriting analysis, statement validity
analysis, etc.), and she interprets this as evidence that the police
do not believe her.
This again increases her stress level, which in turn increases
the likelihood that the examination or analysis will detect a
“lie.” On this basis, the police investigator determines that
the woman has filed a false report, and may even threaten her
with prosecution or try to make her pay for the forensic
examination that was conducted in her case. The woman is
devastated, and either withdraws her cooperation or recants her
story. The investigator walks away from the situation, further
convinced that most sexual assault reports are false.
In fact, the
polygraph is known to be unreliable when used with people
experiencing crisis and many argue that they are therefore
inappropriate for use with sexual assault victims (e.g., Jordan,
1996; Sloan, 1995). Even J.E. Reid, the developer of the modern
polygraph examination offers a long list of factors that can
influence the validity of the test results, such as:
-
extreme emotional
tension or nervousness
-
over anxiety
-
anger
-
concern over
neglect of duty or responsibility that made possible the
commission of the offense by someone else
-
involvement in
other similar acts or offenses
-
physical
discomfort during test
-
adrenal
exhaustion
-
physiological and
mental abnormalities (Reid & Inbau, 1977)
Many of these
factors are extremely likely to be seen with sexual assault
victims, rendering the validity of the polygraph examination
extremely questionable. Yet other factors may be introduced by
the examiner that further limit the validity of the polygraph
examination, including:
-
excessive
interrogation prior to test
-
excessive number
of test questions
-
inadequate
question phraseology
-
inadequate
control questions (Reid & Inbau, 1977)
Because so many
of these factors are likely to be seen in a sexual assault
investigation, they suggest that polygraph examinations are
simply inappropriate for use with sexual assault victims.
That is why polygraph findings are inadmissible in courts in all
50 states, except for certain, narrowly defined uses. Several
states have even enacted laws to prohibit the use of the
polygraph with sexual assault victims or limit the use to very
specific circumstances. Furthermore, because new technologies
such as computerized voice stress analysis (CVSA) operate on
similar principles, the same advisories apply.
-
In fact, there is
currently no technology available to truly “detect lies.”
-
Rather, the
polygraph examination and computerized voice stress analysis are
designed to detect physiological reactions of stress,
which may be associated with lying, or may be caused by anxiety,
fear, guilt, and shame associated with sexual assault
victimization.
It is therefore
recommended that the polygraph should never be used with
victims of sexual assault during the course of the investigation
– even if the victim requests it. A competent,
evidence-based investigation will most likely reveal the truth
much more effectively than these interrogation tactics.
On the other hand, there are some states and jurisdictions where
the polygraph examination is used strategically with sexual
assault victims during the courtroom proceedings, however, this
is only after a thorough investigation has been completed and
documented. The use of the polygraph examination in this very
specific situation is addressed in the Concepts and Issues Paper
on sexual assault investigation recently released by the
International Association of Chiefs of Police (IACP):
“There are
some states and jurisdictions where the polygraph examination is
used strategically with sexual assault victims during the
courtroom proceedings. This tactic can be particularly useful in
the case of a non-stranger sexual assault resulting in a consent
defense, but it should only be used in the phase of courtroom
proceedings and not during the investigation. To illustrate,
many defendants state that they will only take a polygraph
examination if the victim will also take one at the same time.
In addition, many defense attorneys will not allow the defendant
to take a stipulated polygraph if the victim has already passed
a polygraph or voice stress test. In this type of situation, it
can sometimes be strategically beneficial to offer a polygraph
examination of the victim, in court and in front of the
defendant’s wife, girlfriend or mother. This strategy must be
used only if the situation is discussed with the victim in
advance, in the presence of a victim advocate or other
knowledgeable support person.
In some states like Ohio, the results of a stipulated polygraph
are admissible because the person administering the polygraph
can be called as a witness by the prosecutor to testify at trial
as an expert regarding all aspects of the test administered, and
“such testimony shall be offered and received as evidence in the
trial without objections of any kind by any party to the
agreement except as to the weight of the evidence.” Of course,
it is critically important to ensure that this practice is not
abused by having policies that clearly state that law
enforcement should not require, offer, or suggest that a victim
take a polygraph or voice stress during the investigation stage.
Using such tactics during the investigation is not recommended
because they are not generally reliable under such conditions,
they may contribute to a sense of revictimization, and they may
eliminate the proper use of a court stipulated polygraph after
indictment and during the pre-trial stages” (IACP Concepts and
Issues Paper, 2005, p. 13).
For further
discussion about when a polygraph examination might be used with
victims as a strategic trial tactic rather than an investigative
tool, please see the November 25, 2002,
Promising Practices article.
Despite these concerns, many law enforcement agencies do in fact
ask (or require) victims to take a polygraph examination as part
of their sexual assault investigation. For example, based on her
national survey of 83 rape crisis centers in 19 states, Sloan
(1995) found that:
-
As many as 31
rape crisis centers (in 15 states) reported that sexual assault
victims had been asked to take the polygraph examination
before a police investigation was initiated.
-
Worse, 22 rape
crisis centers (in 13 states) reported that sexual assault
victims had been told that there would be no police
investigation if they did not take the polygraph
examination.
-
As many as 18
rape crisis centers (in 9 states) reported that sexual assault
victims were told that they would go to jail if they lied
during the polygraph examination.
Not surprisingly,
this use of the polygraph examination had a damaging effect on
numerous sexual assault investigations, either because victims
“failed” the polygraph examination, refused to take it, and/or
withdrew their cooperation as a result. For example, Sloan
(1995) documented on the basis of her national survey that:
-
A total of 32
rape crisis centers (in 13 states) reported that sexual assault
victims withdrew their cooperation with the police
investigation as a result of their experience with the polygraph
examination
-
Because the
victim “failed” or refused to take the polygraph examination, 13
rape crisis centers (in 8 states) reported that the sexual
assault charges were dropped.
-
11 rape crisis
centers (in 9 states) reported that no investigation was
conducted after the sexual assault victim “failed” or
refused the polygraph examination.
The researcher
even cited at least one instance where the sexual assault victim
was actually arrested for “failing” the polygraph
examination.
In addition to all of these concerns about using polygraphs with
sexual assault victims, there are similar issues when
using a polygraph with suspects in a sexual assault case.
This is especially true when the suspect believes that he had
permission to engage in sexual activity with the victim. As a
result, he is understandably upset by the victim’s allegations,
and may even be extremely emotional. He certainly does not
define his actions as sexual assault, and therefore he may pass
a polygraph examination when asked about the facts of the case.
As a result of these concerns, many states have enacted laws
such as California’s which prohibit anyone investigating or
prosecuting a sex offense from requiring or requesting that the
victim submit to a polygraph examination as a prerequisite to
filing an accusatory pleading. In fact, the language of
California’s law matches very closely with the language included
in VAWA 2005, even though the law has been on the books for over
twenty years. California Penal Code 637.4 reads as follows:
(a) No state or
local government agency involved in the investigation or
prosecution of crimes, or any employee thereof, shall require or
request any complaining witness, in a case involving the use of
force, violence, duress, menace, or threat of great bodily harm
in the commission of any sex offense, to submit to a polygraph
examination as a prerequisite to filing an accusatory pleading.
(b) Any person who has been injured by a violator of this
section may bring an action against the violator for his actual
damages or one thousand dollars ($1,000.00), whichever is
greater.
Texas Criminal
Code similarly prohibits peace officers from requiring a
polygraph examination from a “person who charges or seeks to
charge” a variety of sex offenses (Texas Code of Criminal
Procedure Article 15.051). Therefore, VAWA 2005 may not require
any legislative, policy, or protocol changes in states with this
type of prohibition already on the books. Law enforcement
agencies should consult with legal counsel to see if any
additional change is needed.
Other states have made legislative changes to address the issue
of polygraphing victims of sexual assault, but fell short of
prohibiting the practice as a precondition for investigating the
case. For example, the Kentucky state legislature passed a law
this past year as part of an effort to update their standards
for polygraphists. As a result, the law was designed to apply
directly to polygraph examiners rather than law enforcement
officials. As reported in the February 4, 2005 SATI e-News, the
regulations were drafted by the Kentucky Justice and Public
Safety Cabinet, and although they do not forbid the practice of
polygraphing victims they impose several criteria that must be
met before any such examination is conducted. These provisions
were designed to be consistent with the procedures taught to new
polygraph examiners for years, but until that point, polygraph
examiners weren’t required to comply with the procedures after
certification. For more information on this Kentucky law, please
see the February 2005
SATI e-news article.
Other agencies and organizations have also taken a practice
stand in discouraging or prohibiting the use of polygraph
examinations with sexual assault victims. To illustrate, a
multidisciplinary task force in Florida recently adopted a Model
Policy (1999) for statewide use. One of the provisions of that
model policy was the following admonition:
“The use of
polygraph exams or voice stress tests with victims shall be
strongly discouraged and set forth in policy ... such tests
should be conducted only under limited circumstances and ...
those circumstances ... should be set forth in policy” (Florida
Model Policy, 1999, p. 15).
The Model Policy
on sexual assault investigation that was recently released by
the IACP includes a similar provision, stating that:
“Law enforcement
agencies should establish policies to clearly state that
officers should not require, offer, or suggest that a victim
take a polygraph examination or submit to SCAN or voice stress
analysis during the investigation stage” (IACP Concept and
Issues Paper, 2005)
Yet in the wake
of VAWA 2005, even this type of legislation or model policy will
not go far enough to meet the new mandate. Regardless of the
standards imposed on polygraph examiners or admonitions in any
model policy, VAWA 2005 clearly states that law enforcement
investigators and prosecutors cannot request or require victims
of sexual assault to submit to a polygraph examination or other
truth telling device as a condition for proceeding with the
investigation of the crime. This will require law enforcement
agencies to respond more proactively by implementing written
policies and protocols, with the information disseminated in
training for officers, detectives, and prosecutors. This
legislative development also provides an excellent opportunity
for law enforcement agencies to work cooperatively with victim
advocacy organizations such as rape crisis centers to craft
appropriate protocols, conduct cross-disciplinary training, and
design a structure for responding to any potential violations.
To further support you in your effort to meet this new
requirement, we would therefore recommend that you start with
the new Model Policy and supporting Concepts and Issues Paper
released by IACP. They are available at:
Investigating Sexual Assaults Concepts and Issues Paper
(July 2005),
Investigating Sexual Assault Model Policy (May 2005).
Three training keys are also available for purchase from the
IACP.
References:
Jordan, F.D. (1996). Sex Crime Investigations: The Complete
Investigator’s Handbook. Boulder Colorado: Palladin Press.
Reid, J.E. & Inbau, F.E. (1977). Truth and Deception: The
Polygraph (“Lie Detector”) Technique. Baltimore, MD:
Williams & Wilkins Co
Sloan, L.M. (1995). Revictimization by polygraph: The practice
of polygraphing survivors of sexual assault. Medicine and Law,
14, 255-267.
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